Herter v. United States

• Decision Date: 17 June 1929
• Docket Number: No. 5751.,5751.
• Citation: 65 ALR 1240,33 F.2d 402
• Parties: HERTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

65 ALR 1240, 33 F.2d 402 (1929)

HERTER v. UNITED STATES.^*

No. 5751.

Circuit Court of Appeals, Ninth Circuit.

June 17, 1929.

Lester H. Loble and Hugh R. Adair, both of Helena, Mont., for appellant.

Wellington D. Rankin, U. S. Atty., and Howard A. Johnson and Arthur P. Acher, Asst. U. S. Attys., all of Helena, Mont.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

On November 1, 1928, the district attorney for Montana filed an information charging appellant, in the first count, with the unlawful possession of intoxicating liquor, and, in the second, with the maintenance of a nuisance under the National Prohibition Act. Appellant was later convicted on the first charge and acquitted on the second, and from a judgment entered January 29, 1929, imposing a fine, he prosecutes this appeal.

The assignment he most persistently presses involves the reception over his objection of evidence secured by the prohibition agents in a search of his residence. The residence is at Helena, and the search was made on October 5, 1928, under authority of a search warrant issued by a United States commissioner at Great Falls on September 28th. The warrant was based upon information contained in an affidavit made the day before by B. M. Sharp, who stated positively that on September 24th he purchased from appellant at his residence a number of drinks of intoxicating liquor, both beer and whisky, for which he paid at the rate of 25 cents a drink; that appellant was keeping quantities of liquor upon the premises and was selling the same; and, further, that by common reputation he was engaged in selling liquor upon such premises. That the warrant was regular upon its face is conceded, and from the return it appears that in executing it the officers on October 5th found and seized 6 cases (apparently 24 bottles each) of homebrew beer, 2 gallons of moonshine whisky, and 5 gallons of wine. By the commissioner the warrant and return and other pertinent papers were on October 6th sent for filing, and were on October 8th filed in the office of the clerk of the District Court. On October 9th appellant filed with the clerk a petition supported by affidavits putting in issue some of the averments in the Sharp affidavit and praying for an order remitting the papers to the commissioner for further proceedings pursuant to section 15 et seq. of the Espionage Act (40 Stat. 229, 18 USCA §§ 625, 626). Upon a hearing of the petition the court at Great Falls, on December 1st, entered an order directing the clerk to remit the papers to the commissioner "for further proceedings," with leave to appellant "to take such other and further proceedings before such commissioner as may be lawful to controvert the grounds on which" the warrant was issued. The papers were so returned to the commissioner, whereupon appellant filed with him a petition to quash the search warrant, and for a return of the liquors, upon which a hearing was had, and subsequently on January 18, 1929, the commissioner returned to the clerk the original papers together with such petition, a transcript of the testimony of witnesses given before him, and his report of his proceedings and conclusions. Appellant has not brought here his petition to quash or any part of the evidence taken thereon, but has incorporated in the record the commissioner's "Report * * * and Ruling." From this it appears that the hearing was had on January 5th at Helena, at which time twelve witnesses besides appellant himself gave testimony in his behalf and three witnesses were called by the government. The return of the testimony was in the form of the shorthand reporter's transcript, each witness signing his part thereof with the exception of four whose signatures, for reasons not here necessary to state, could not be obtained. It also appears that at the time of the hearing the parties were unable to secure Sharp's attendance as a witness, but the commissioner considered his original affidavit as evidence. In his affidavit Sharp did not state at what hour he made the purchase, and appellant testified that the only times he was at his home during the day were from 9 in the morning until 1 in the afternoon and from 6:30 to 7:30 in the evening. All the witnesses, with the exception of members of appellant's family, testified only to seeing appellant at places other than his home at certain hours of the day. Of the several members of appellant's family at least one, and possibly, but not necessarily, more, according to their testimony, was present in the home at all times, and that no one saw Sharp or any other strange person on the premises during the day or saw any liquor sold there. Two prohibition agents testified that at all times mentioned the residence bore the common reputation of being a place where intoxicating liquor was sold, and one witness, an attorney for appellant, testified to the contrary. The commissioner excluded from his consideration entirely all evidence of the reputation of the place and considered only the Sharp affidavit as having any tendency to show probable cause. "This," he said, "is in direct contradiction to the testimony of twelve witnesses" — a view so manifestly in conflict with his own statement of what the witnesses testified to that comment is unnecessary. Even with this inadequate and erroneous consideration of the evidence, his finding of fact was only "that the preponderance of the evidence is to the effect that there was no sale of intoxicating liquor by Karl Herter * * * on the 24th day of September, 1928, at or on the premises described in the search warrant, and I so find." And he adds (as a conclusion of law), "I therefore find that there was no probable cause for the issuance" of the warrant. Whereupon he ordered the warrant quashed and the "evidence" obtained thereunder "suppressed." The disposition of the liquor, however, he expressly "left subject to such order as" the court "may deem proper."

We have thus set forth in considerable detail what occurred prior to the trial, for thus more clearly may be brought into view the strange consequences that would follow if appellant's contention be sustained. His objection to the reception of the evidence was not predicated upon the theory that in issuing the search warrant the commissioner acted without a sufficient showing of probable cause, or, for any other reason, illegally, or that the officers executing the warrant proceeded unlawfully. The warrant was issued and executed in the manner and under the conditions sanctioned by both Constitution and statutes. Appellant did not offer to the court any original proof that in fact the search warrant affidavit was false. His contention was and is that the subsequent action of the commissioner was conclusive upon the court, that by reason of such action the search warrant was rendered void ab initio, and that hence the evidence thus obtained was inadmissible. In short, the contention is that after a prosecution has been commenced, predicated upon disclosures accomplished by means of a search warrant duly issued and executed, the court in which the proceeding is pending may be foreclosed of the right to receive the evidence and the prosecution virtually frustrated by the action of a magistrate not necessarily learned in the law. It is to be borne in mind that within the scope of the commissioner's order here the proceeding was not an independent one admitting of an appeal, but was incident only to the criminal prosecution pending in the District Court. Cogen v. United States, 278 U. S. 221, 49 S. Ct. 118, 73 L. Ed. ___. Hence where, in such a case, the government is largely dependent upon the evidence so obtained, if appellant's contention be valid a defendant, even though really guilty, would have two real chances to escape: If he succeeds before the commissioner, as here, the prosecution would be left without sufficient evidence, and if he fails before the commissioner he still would have his full chance with the trial court and jury. And, as pointed out by Judge Hough in the Maresca Case (D. C.) 266 F. 713, 719, the ruling upon the validity of a search warrant being purely interlocutory, in case a defendant is convicted he...